Legal Case Summary

The Honourable, the Judges of the United States Court of Appeals for the Fourth Circuit. Oye, oye, oye, all persons having any manner or form of business before the Honourable, the United States Court of Appeals for the Fourth Circuit are admonished to draw an eye and give their attention for the court is now sitting. God save the United States, this Honourable Court. Be seated. We want to welcome all of you here to the Fourth Circuit. Thursday, January 30th. We have two interesting cases this morning. The first one is the United States versus Stacks. Mr. Carpenter, good to have you, sir. Thank you. Does Michael would be proud of you? Thank you. May it please the Court. The traffic stop in this case violated the Fourth Amendment because Mr. Stacks had not committed any traffic offenses, had not violated any other laws. And with all things considered, the officers had no good reason to believe that criminal activity was imminent. The district court is holding the government's defense of it on appeal in this case, suffer from two. That a crime wave going on up down that street, though. Well, we certainly acknowledge that this is an area that was a high crime area, at least with respect to vehicle break ins. And there's no doubt that that factor is in. But the court has repeatedly held that even in high crime areas and even late at night, those factors alone aren't enough to stop just anyone who's present in that area. There has to be particularized suspicion that the individual is engaged in or about to be engaged in criminal activity. And here the court's holding that that standard was met suffers from two overarching flaws. The first is that it's inconsistent with this course decision and foster. And the second is that rather than conduct a true totality of the circumstances analysis, both the district court and the government cherry pick. By ignoring key contextual factors that undermine reasonable suspicion. So if we turn first to the foster problem, the court said in that case that the government quote must do more than simply label a behavior as suspicious to make it so. That's exactly the problem we have here. The core of the district court's holding is its belief that Mr. Stax was acting suspiciously by driving through three hotel parking lots without stopping or without ever getting out of his car. But neither the officers on the scene nor the district court nor the government and its appeal has ever articulated why someone looking to break into a car would drive around in that matter. And that's where this case presents a stark contrast with the Terry case that the government relies on. In that case, the officers also observed a peculiar pattern of behavior two men pacing back and forth in front of a store a dozen times over a 10 to 12 minutes span. In that case, though, the officer testified that he recognized that activity he'd seen it before in his experience surveilling downtown Cleveland. He believed that the men were casing the store and were about to launch an armed robbery attempt here by contrast these officers testified that they didn't know what Mr. Stax was doing. They thought it looked as if he was lost. They thought it looked as if he was looking for a police space because his office was suspicious

. But that's not enough to think he's suspicious. I mean, certainly what he was doing was unusual. It was something they didn't see in their other in their other observations, but that's not enough. They need to be able to articulate why that unusual driving slowly, right. I don't think there's anything in. He's driving by himself. You already looked to the right, which was towards the parking lot. He didn't ever look to the left. Everything on the left was closed on the right. You had three hotels that were open for the morning. It was 4.30 in the morning, but there are lots of innocent explanations for that kind of activity. As the officers themselves said, they thought it looked like he was lost. He gave an explanation. That wasn't even taking his girlfriend to work. Well, I'm sure you didn't have a girlfriend in the car when they saw him. There was certainly some degree of miscommunication or confusion there. I don't know if Mr. Stacks got nervous and didn't explain himself well or if the officers just misunderstood my understanding of what actually happened that night, although it's not in the record because it's not really relevant, is that he was meeting actually a girlfriend there and out of town girlfriend who'd come to visit and was staying at one of those hotels. That's not what court found. Well, that's true. And the reason... That's not what I'm excited about the court of the ones we had to deal with. I don't question your version, but the facts that the court found are the ones we had to rely on unless they're clear error. That's right. And what he told the officers he was taking his girlfriend. He was dropping his girlfriend off at work, perhaps the inference of Audrey was that she must be working in one of these hotels. Well, they didn't add a cedar in the car and then he gave me his license. And then he took off. Well, the officer holding his license. That is an accurate recollection of the facts. But the important point here is not what he told them what he said when he was stopped. The officers needed to have a reasonable suspicion before they initiated the stop in the first place. So the reason that he's actually there while it was an innocent reason is not relevant. What is relevant is what the officers perceived at the time

. And if you look at their testimony, they have never articulated why they thought this driving pattern suggested that he was about to break into a car. If you look at their testimony, what they say is, well, he was doing something unusual. We didn't know what it was, so we wanted to stop him to investigate further. But were the officers limited to just the kind of behavior that would be reflective of why they were there breaking up the cars? I mean, if they saw behavior that would indicate some type of criminal activity as a foot, are they able to use that as a basis for reasonable suspicion? In theory, sure, but they didn't articulate any other basis. They didn't say that they thought he was engaged in drug activity. They thought he was engaged in any other kind of activity. All they said is that it looked like he was doing something different. They didn't know they wanted to investigate further. And the district court's basis was solely relying on the notion that what he was doing was consistent with a vehicle break in, which was the crime spree that Judge King referenced in this area on this particular street was solely limited to break into vehicles that are parked in these lots. It wasn't a more generalized high crime area. And so, and the other big crime criminal conduct, they could have been looking for a dead making, dead making, a reasonable suspicion of something, something to miss. Well, reasonable suspicion of criminal activity, not just reasonable suspicion of unusual activity. Even the court has held again and again in cases like Foster, Massonberg, Sprenkel, that simply because the officer see something that's unusual, that's strange, that they don't recognize, that's not enough unless they can articulate a basis for believing that that unusual activity is likely to be indicative of criminal activity rather than innocent, but unusual activity. The reason why the police officers in this methodical driving would indicate maybe he's casing the car. Well, that may be accurate if he had focused on a particular set of cars or if he had done this multiple times. And that's where we have a big contrast. He did multiple times. He drove into what three parking lots. Right, but he never focused on a particular set of cars. He simply drove... By himself, slowly, looking to the right, which is where all these parking lots for these hotels were, and he drives through three of the parking lots. Slow. Well, again, there are all kinds of innocent explanations for that. But the officers could infer what has been exploited. Well, I think the reason that inference is an unreasonable one is that there's no reason... It's hard to explain why in the world that activity is what someone would do who was looking. If you hypothesize that he's coming here to break into a car, why would he drive around in this manner? It wouldn't allow him to see inside the cars. I mean, he's driving around a little too-dour sedan. He can't... It's not as if he's driving a big escalator, a hummer where he can peer down into the cars and see what's valuable sitting on the seats. He has no way to see what's inside the cars from his vantage point

. And that's where this case presents a very stark contrast with what's happening in Terry. There's in Terry it's easy to articulate why what the men were doing would have facilitated them in undertaking an armed robbery. By pacing back and forth in front of this store, they can see the layout of the store. They can determine how many employees are there that day and where within the store they're located. They can identify valuable items around the store that they might steal when they launch their robbery attempt. None of those things. So in that case, there's a very logical and easy to see explanation for why what the men were doing would have led to, would have facilitated a criminal act. Here, this unusual activity driving through these three parking lots, never stopping, never getting out of the car, would not have facilitated Mr. Stacks and breaking into one of these cars. What would have been suspicious is if he had gotten out of his car, walked around the parking lots on foot, peered into these cars. That would have allowed him, you know, that would have, there would be innocent explanations for that potentially, but it would also lead to a reasonable inference that what he was doing was going to facilitate a crime of breaking into one of these cars. And that's missing. That's a difference from Terry. The other overarching problem with the government's analysis is that they omit some key contextual factors that undermine the reasonable suspicion finding. The first thing that the court and the government failed to acknowledge is that at the time of this stop, Mr. Stacks had exited these hotel parking lots and was driving out of the area on the West Park Drive. What that should tell us is that even if these officers were concerned while he's driving through these parking lots that is just fully said, maybe he's casing a car. When he pulls out of the final lot without ever having stopped and heads out of the area, any concern that he's about to break into one of these cars should have dissipated. And that again distinguishes this case from Terry and from this course decision three years ago in the United States versus Glover, which is cited in the briefs. Both of those cases deal with preventive police action like we're dealing with here, where the police haven't observed their criminal offense. They haven't observed the traffic offense, but they make a stop because they think something might be up here in a few minutes. In both Terry and Glover, the courts emphasized that we're dealing with the threat of imminent criminal activity. That's why Terry relies so heavily on the fact that police on the beat need to make instantaneous decisions. Same thing in Glover. Both stopping the defendant had the officers obtain his license plate number. No, they had not. The testimony was that they began to type in the, they began to type in the license plate number as they pulled up behind him and but had not finished it by the time that the blue lights were initiated. That's pretty clear on the. And his license plate number before they stopped. They did they did not have his license plate number until after the blue lights had initiated and he had come to a stop. The district court. They pulled him behind even they. They got to rest. That's right. They pulled him behind the officers testimony was I believe it was officer over most driving Williams was writing shotgun. He tells Williams testified that they pulled in behind the guy initiated the blue lights and he stopped and he had began in the midst of that time to type in the license plate number. It was clear that it hadn't been fully obtained until after the blue lights were on

. The other factor that I think the government and the district court. Omit in their analysis is they put a lot of weight on the nature of Mr. Stax's reaction when he comes into the police presence. But they failed to acknowledge that at the time he passed this car it was 4 30 in the night. It was completely dark outside and the officers were driving with their headlights off. His reaction in that circumstance is under markable. I think all of us would react in the same way. We'd look surprised. We would turn to see what in the world is happening with that car that just drove that car head lights off. But he saw that the fellas in it were in police uniform. They they were a policeman at that point. They speculated that he knew they were policemen. Obviously we don't look at him closely. Well, it indicated. Even if we assume that their speculation is accurate. I want to contrast his reaction here to the type of nervous and evasive behavior that we typically see in these kinds of cases. Normally the court said that if people speed away, and you know, normally in these cases people speed away. They run away. They hide their faces so that police can't see them. And the court said, well that's nervous and evasive behavior that properly factors into the reasonable suspicion. Calculate. Here, Mr. Staxley, the exact opposite. He turned to look towards them and he slowed down his car. At least to the question of how could he have reacted in this situation that wouldn't have been suspicious to the officers. We know from previous cases that if he sped away, if he looked nervous. Any reaction at all they would have considered suspicious. Exactly. And this court just last year in the United States, the sources black rejected that kind of false dichotomy where the officers, the Charlotte Police officers there, had said. He was overly cooperative, so we thought that was suspicious. Well, the court said no, no, that puts him on pins and needles. If he's uncooperative, if he's nervous and evasive, that suspicious. If he's overly cooperative, that suspicious. He's speeding a suspicious. He slows down a suspicious. Exactly. The court rejected that kind of false dichotomy in black

. It should do the same thing here. South is suspicious. Is going north is suspicious. Exactly. And the court has rejected reliance on those kinds of facts before. We ask it to do the same here. I want to ask you a question over for you. Sure. Sure. You just focused on that one issue. We got another issue. If you should prevail on that issue. Don't you still have a problem. Underbinding the conviction. So there. No, is the is the short answer to that question. But if you have a few minutes to explain. I'm not asking you. Well, I just want to set that up for the prosecutor. Okay. Well, I'm happy to address it on her bottle. Whichever the court version is that you. If you if you went on your regional cessation issue, that's the end of the case. Well, yes, I think that is the end of the day. The governor's going to say it's not. Indeed, they say that you concede or I think in your brief that maybe they haven't still have a case without it. So what the government had said before the suppression motion was decided that if the initial stop was on constitutional, what that means is they can't introduce the eyewitness testimony from the officers. That to which would place Mr. Sachs in the area that night. Without that connection to the area where the gun was found, I think it would be impossible for the government to prove their case. And that's why before the suppression motion was decided, they said it judge Whitney, if you disagree with us and think this stop was invalid, we'll dismiss the indictment. They said back then that's what they wouldn't prosecute, but now they got a conviction. And that but anyway, certainly they could change the mind. We'll think that up if we need to. Mr. Miller, you agree with all that? May I please the court, William Miller on behalf of the United States. As the district court correctly found, there was ample evidence to support a finding of reasonable suspicion in this case

. The defendant has conceded that this area was a hotspot for the exact type of crime that or for vehicle break ins. And they concede that this time of early morning hour also properly factors into the reasonable suspicious analysis. The key dispute here is over whether or not the defendant's behavior in that environment led to particularized suspicion sufficient to support a stop. And the government's contention is that driving up and down these rows of cars is exactly the same type of suspicious behavior that was presented in Terry. Mr. Carp, this is exactly the same category as in Terry. This is a classic Terry case. Mr. Carpenter listed three facts from Terry that went into officer McFadden's reasonable suspicion in that case. He mentioned the fact that the casing could allow the defendant to take a look at the layout, ascertain the number of employees and target valuable goods. That's exactly what the defendant in this case could have ascertained from driving up and down these rows of cars. You could get the layout of the parking lots. You could see the number of employees, any cameras that were around. It's a reasonable inference based on the fact that you could draw that from anybody that drives by car. You could infer that someone who drives around a parking lot a few times and say, well, they had a chance to case the cars. Look around and see what was going on. What's different in this space area where crime has occurred. That's correct. That's what differentiates this case, Your Honor. It's 4.30 in the morning when the defendant's engaging in this type of behavior. It's not a crime to drive around 4.30 in the morning. No, and the officers don't have to have even close to probable cause of a crime to justify Terry stop. This court has said it doesn't even have to come close to a preponderance of the evidence. But someone who's driving in a car and as the finding of facts indicate he didn't stop, he didn't talk to anyone. He never got out of the car. He's just driving his car around. I mean, you really got to do some inferring to determine he is involved or about to be involved in a crime. Particularly for the one, the type of crime they're looking for. Judge, when there are, and in these cases, the experience of the officers and the way they view things, this court does credit their experience. And the two officers in these cases had over 40 years of experience between the two of them. And so their observations of this defendant's behavior and how it's different from everyone else they saw that morning is an appropriate consideration for this court in determining whether or not. I mean, if they kind of stayed in place and this was going to happen, I mean, there could be a decision to move from their spot without the headlights on. If anything looks suspicious, that looks suspicious. And then the court holds it against the defendant, but turned his head around. And I don't know what that means

. I suppose anybody driving around 4.30 in the morning, you see another car with headlights around creeping or moving through a lot in this particular area. You would like me to turn you head around too. I'd like to address both of your points. They're the first being the duration of the observation. The officers and officers in this case did exactly what Terry and this court's president hired for six to seven minutes. I believe the test is. Six to seven minutes from the time his car came into view until they pulled the driver. That's correct, Judge King. So what he was driving a Cadillac? Yes. Does that have anything to do with? I don't believe that that was a factor. I just wanted to bet fact he's driving around the Cadillac. No, but what they did observe, Virginia, I'd have a lot of maybe people think of something about that. But what they did observe in that six to seven minutes was this defendant's behavior was different from everyone else they'd seen. And so by watching him go through all these parking lots and repositioning themselves. How much was always looking one side rather than the other looking to the right? The fact that he is focused on the hotels and the cars is a fact that factors into the reasonable suspicious analysis here in the totality of the circumstances. By itself, it may not be enough, but that's not what you got to look at all of it. But the fact he had a driving a Cadillac doesn't come in. It could be driving an old crappy forwarder shot. I don't know that that was a factor that that anyone's referenced at this point of the court relied on below. But to the point about the six to seven minutes of observation, during that time, they did exactly what this court requires, which is to determine whether or not the defendant's conduct is different from a substantial portion of innocent travelers. These officers had seen a half a dozen cars come in the time prior to seeing the defendant. All those folks went straight in, made deliveries, went into the front office. They all had business at the hotel. The defendant on the other hand was methodically driving up rows of cars in three parking lots. The defendant cites repeatedly officer Williams testimony about the defendant appearing to be lost or like he was looking for a parking space. But that's a mischaracterization of the testimony because officer Williams went on to say that that was his initial impression, but that after he continued to observe the defendant, he realized that behavior is not consistent with someone who was lost. And the defendant didn't stop at any of the parking spaces. And so to cite that initial impression that the defendant appeared lost or like he was looking for a parking space, that's the type of cherry picking that the defendant has accused the government of doing when viewed in its full context. The officers here took their time and observed the defendant long enough to distinguish him from other innocent travelers until your second point judge went about the defendant's reaction. The officers during their testimony certainly said, yes, it would have been fairly normal, I think, was the quote for someone to look at us at that moment for us to catch their attention. It wasn't normal to them was the defendant's reaction of coming to a near complete stop, sitting up in the seat and turning his whole body around 180 degrees and appearing surprised. And so there's no question that if you encounter another vehicle at 430 in the morning without your headlights on, you're going to react. But these officers... Unless you are out there trying to meet somebody and then you happen to see a car and it's as light as a light saw and you look in the sea if that's who you intend to meet

. That seems more consistent than someone who's trying to rob a car. And there may be innocent explanations, it's not the government's responsibility, it wasn't these officers responsibility to eliminate every possible innocent explanation. The question is whether or not they had reasonable suspicion to stop the defendant to do further investigation. But that's more than just speculation and more than just individuals who would rob and around and are pocket a lot. I mean, that's the average citizen and I don't think you're held to a standard, you've got to conform your behavior to that which other people in the area are doing. You know, in a country where you can ride around if you want to and you can do things. And reasonable suspicion is a low threshold, I grant you, but it just seems, you know, why wouldn't they just wait a little longer and with the old experience they got and and you know, let this thing progress to a point where they think they have that suspicion. The government's position is they had the requisite reasonable suspicion when they executed the stop and I agree with your honor that the defendant's reaction and isolation would certainly not have been enough to rise to the level of freedom. We've even got cases in the full circuit where if a defendant doesn't react to the officer, that's suspicious. It's interesting, you know, if he reacts is suspicion, it doesn't react. Well, a normal person would have reacted. And I don't know how we deal with those kind of cases. The threshold is pretty low, but it requires a little bit more than just speculation. Right, I think it is important here, your honor, that the officers did acknowledge that it would have been fairly normal to have some reaction, but what they saw went beyond what they would have expected. You agree that it would be normal for them to react, him to react when he saw the car without light. Absolutely, I think we would all agree that they would be normal for him to react somewhat when he saw the car without lights with two uniform golfsters inside. And that's the moment that might have suspected that they were out of proud of steel cars in person, please all. Well, I don't know if that's a, that would cause him to turn 180 degrees. At this point, your honor, given that the district court suppressed this evidence, we view the evidence in the light and most favor the government. I think that would require viewing it in the light. But that particular part of this thing is the government's construction of it is kind of troubling that that was something abnormal or something when they're running without light. And I would concede your honor that in isolation, in isolation, that doesn't help you though. That doesn't help us a lot, but I think it's also important that like all of us, these officers expected some sort of reaction. It would have been fairly normal, but they're testimony in what they perceive. When we were looking at first, they weren't impersonating officers and they're analyzing his reaction, whether it was suspicious or not enough for them to pull him over. And that's the point you got. And that's what Judge Whitney had to deal with. I mean, he was concerned about this too, but he had a couple of hearings. Well, and then tried to get you all to depulate or work something out or find something. Judge Whitney's concern was whether or not there was an alternative basis to affirm. I think his order very clearly states that there was ample evidence to justify this stuff. He had two hearings, right? That's correct. And in our district, that's not a typical with Judge Whitney. That's not a typical. That's routine kind of thing. We are frequently called upon to provide additional briefening for the honorable Judge Whitney in our district. And I don't think he would mind me saying that

. The other point that the defendant makes is... And he's former prosecutor. He was you asternied on her. Yes, your honor. And was an assistant for a long time. He's been... He's seen a lot of these cases. That's right, Judge King. The other point that the defendant makes is that there was no specific testimony where the officers explicitly said that this methodical driving up and down the rows of cars is what exactly what we were out there looking for. And although there may not be that specific statement, it is the inevitable conclusion based on this testimony in this case. And the district court found twice that the defendant's behavior was in light of the officers training and experience consistent with largely from automobile and consistent with the type of crime typical of that area at that time of night. And I think a complete reading of officer overman and officer Williams testimony leads to that inevitable conclusion. Right in the middle of officer overman's description of the defendant's conduct, he reaffirmed that the surveillance that it was designed to stop people from breaking into cars. That's at page 36 of the Joint Appendix. And similarly, the prosecutor all asked officer Williams, you know, what were you looking for when you were out there doing the surveillance for for break ins. And he said we were looking for something out of the ordinary. He then described what was ordinary and contrasted that with the defendant's behavior. And so it's not a fair characterization of this record to say that somehow the officers failed to articulate why this behavior was suspicious. And in these types of cases, it's also fair to look trial testimony and how how the testimony there comes out as well. And during his trial testimony, officer overman was asked what was the basis for the stop. And the very first thing he mentions is that they were out there to detect and prevent vehicle break ins. I would submit to the court that it would have been irresponsible for these officers not to have at least stopped these the defendant long enough to. And when they stopped him, where was he going? Was he coming out of the lot? And I'm glad you asked that question, Your Honor. That's all an important clarification as well. At the time when the officers passed the defendant, he was headed straight into the dead end of a cul-de-sac. And so when he turned around and they initiated the stop, he was headed, you know, back toward the main road, but he also was going past all three of those hotels again. And the defendant says that this is something that which would indicate the possibility he would turn in and do a crime or. He was going right past the same three hotels he had just cased the parking lots of or at least driven up and down the rows of cars. And the defendant says that the fact that he's headed back in that direction somehow distinguishes this from Terry. But the defendant and Terry made the exact same argument. And he's seen the officers in these uniform. He's probably been alerted to the fact that they had he headed out and they stopped him. You see, they're there trying to prevent him from breaking in a vehicle

. He's headed out. And there's no requirement officer just merely has to make his presence known to stop the behavior. I mean, that wasn't the standard in Glover, you know, the officer didn't have to just go stand by the parking lot attendant to get this guy to move on about his way. Once the officers have that suspicion, they're justified in conducting a stop to investigate it. All these cases are fact intensive and you know, we can write it anyway. You won't bumpers is a good example of that. Talk about the sprinkle ordinance. Certainly. We're just kidding. You said it back. Certainly, Your Honor. If I just may briefly finish the point about the Terry case and Terry, the defendant also argued that the men were walking away. But what the court says is although the trio had departed the original scene, there was nothing to indicate abandonment of an intent to commit a robbery at some point and that it was therefore reasonable to conduct the stop. And so that's not a distinction from Terry. I just wanted to make that clear as to your question about sprinkle judge Floyd. That case, even if the stop were determined to be unlawful, the evidence of the defendant's identity and jail calls would nevertheless be admissible in light of sprinkle. And the reason for that is you have to retry the case. I wouldn't have to go back retry because there have been a bunch of evidence about that stop. I have to come out with. I know your honor and the reason is that the fact that you'd be entitled to show that he ran. You'd be able to show that he was. And you could have put that in context for half. Correct. So that place is the defendant. There'd be some kind of a harmless air analysis to figure out whether the conviction is any good. That's what I was trying to get at. Right. And the critical pieces of evidence here are the defendant's present. This thing's effective. You know, that's the. That's right. Judge King and the critical pieces of evidence here are the defendant's presence. In that area, which in light of sprinkle would be admissible given that the. New crime purges the taint of the you know, arguably unlawful stop. And so here you would have the defendant's presence there that night. And critically, you would also have the jail calls where he then speaks about the gun talks about tossing the gun. All of that evidence would still come in. And those are the critical links. To the finding of guilt in this case. The driving in and out of the parking lots is the basis for the reasonable suspicion. But the only reason the prosecutor admitted that evidence during the trial. And she says as much during the transcript is just to provide context for the stop to let. You know, the jury know that this wasn't just a. A random pulling over tried to case without that evidence. You're saying absolutely and the defendant. If you had done that, you wouldn't have he wouldn't have this. We've been arguing for 25 minutes about the thing that you say didn't I mean do it with the government firmly believes there was reasonable suspicion in this case. And at that point, you know, the district government do the case. I'm actually convicted of possession of a firearm. That he was never seen with. Right. That's well that was found the next day. In this rubbery. Correct. And so the critical links in the testimony are the defendant's presence. There that night at and the jail calls the defendant objected to the prosecutor going. That's the critical thing that he ran. I mean, that's. That's evidence of guilty mind. Right. And the crime, the intervening crime that that purges the taint. The defendant objected below to the officer testifying about the basis for the officer's reasonable suspicion. And so we know from the record the relevance of that testimony in the government's mind because she says that she was just putting that in there. To, you know, indicate to the jury that this wasn't an unfounded stop. And so it was really just. The content. It's the whole thing. If it's bad, why wouldn't it taint the prospect of the fact that I'm getting a fair trial. Well, under acted suspiciously driving up down the road there. Under the night and in the. And was stopped and all that stuff. And if that if that is in fact without reasonable suspicion. Well, under a harmless air analysis. Some would have to be suppressed

. And those are the critical links. To the finding of guilt in this case. The driving in and out of the parking lots is the basis for the reasonable suspicion. But the only reason the prosecutor admitted that evidence during the trial. And she says as much during the transcript is just to provide context for the stop to let. You know, the jury know that this wasn't just a. A random pulling over tried to case without that evidence. You're saying absolutely and the defendant. If you had done that, you wouldn't have he wouldn't have this. We've been arguing for 25 minutes about the thing that you say didn't I mean do it with the government firmly believes there was reasonable suspicion in this case. And at that point, you know, the district government do the case. I'm actually convicted of possession of a firearm. That he was never seen with. Right. That's well that was found the next day. In this rubbery. Correct. And so the critical links in the testimony are the defendant's presence. There that night at and the jail calls the defendant objected to the prosecutor going. That's the critical thing that he ran. I mean, that's. That's evidence of guilty mind. Right. And the crime, the intervening crime that that purges the taint. The defendant objected below to the officer testifying about the basis for the officer's reasonable suspicion. And so we know from the record the relevance of that testimony in the government's mind because she says that she was just putting that in there. To, you know, indicate to the jury that this wasn't an unfounded stop. And so it was really just. The content. It's the whole thing. If it's bad, why wouldn't it taint the prospect of the fact that I'm getting a fair trial. Well, under acted suspiciously driving up down the road there. Under the night and in the. And was stopped and all that stuff. And if that if that is in fact without reasonable suspicion. Well, under a harmless air analysis. Some would have to be suppressed. Stuff related to that would would be subject to suppression. That's what. Mr. Carpenter saying. But then with the question is. What what's left in is or enough left to sustain the conviction. Or would you have to do it over. If you wanted to. And the language of sprinkle is that the intervening illegal act purges the taint. Of. The initial stop. And so in this case, the officer's observations of the defendant. They would still be admissible. There's no reason why that would be suppressed their firsthand observation. The evidence of his identity was what was obtained by the stop. His license drivers like. And that's what you got that you got that by stopping illegally. If you're assuming. I don't know what they don't give up your position at all. But assuming that there's something wrong with it. No, in this case is on all fours with sprinkle because the officers observed the defendant in the car. And then when they went up and approached him and as this court found unlawfully stopped him. He took off. Running. And so there was nothing about what happened before that prevented the government from proving. You know what happened after the shooting and the intervening unlawful act. And so sprinkle really is on all fours with this case. And if I may just briefly address the state versus swift that the defendant has cited as somehow undermining. The sprinkle case. That's a 1992 North Carolina Court of Appeals case where the court actually affirmed. The denial of the motion to suppress. And so the defendant cites that for the proposition. The sprinkles are case after that. It's after that and the proposition that the defendant cites. About you know somehow you get a license to commit a crime when you're unlawfully stopped. That's actually dicta. In swift itself, which is a 1992 court of appeals case

. Stuff related to that would would be subject to suppression. That's what. Mr. Carpenter saying. But then with the question is. What what's left in is or enough left to sustain the conviction. Or would you have to do it over. If you wanted to. And the language of sprinkle is that the intervening illegal act purges the taint. Of. The initial stop. And so in this case, the officer's observations of the defendant. They would still be admissible. There's no reason why that would be suppressed their firsthand observation. The evidence of his identity was what was obtained by the stop. His license drivers like. And that's what you got that you got that by stopping illegally. If you're assuming. I don't know what they don't give up your position at all. But assuming that there's something wrong with it. No, in this case is on all fours with sprinkle because the officers observed the defendant in the car. And then when they went up and approached him and as this court found unlawfully stopped him. He took off. Running. And so there was nothing about what happened before that prevented the government from proving. You know what happened after the shooting and the intervening unlawful act. And so sprinkle really is on all fours with this case. And if I may just briefly address the state versus swift that the defendant has cited as somehow undermining. The sprinkle case. That's a 1992 North Carolina Court of Appeals case where the court actually affirmed. The denial of the motion to suppress. And so the defendant cites that for the proposition. The sprinkles are case after that. It's after that and the proposition that the defendant cites. About you know somehow you get a license to commit a crime when you're unlawfully stopped. That's actually dicta. In swift itself, which is a 1992 court of appeals case. And so there's nothing about swift that undermines the rationale of sprinkle. You don't get license to commit another crime to get away from officers based on your judgment. That the stop was unlawful. And so this case truly is on all fours with sprinkle. And so the government would ask that the court affirm the denial of the motion to suppress. Based on the ample evidence of reasonable suspicion. And in the alternative, the court may affirm on the basis of sprinkle. What about let me ask one other question. Any one of you talked about the. Expert testimony or the non expert testimony. You all in your brief sort of conceived that that's error, but it's probably harmless. We do not say don't take your head. No, because that's exactly what you say. That's even assuming if there were error. You go right to the point that it's harmless error. Well, what we argued is this is not arbitrary or irrational, which is the standard at this point under abusive discretion. And what the court was doing that we do argue in the brief. You're immediately go to harmless error. Our recollections that we argue that and you may well be right, but the court made all. Excuse me. The court made all the requisite findings under rule 702. We are heading actually heading in your brief. Item two, the district court did not plainly air in, but that's actually an error. Not a certifying this is an expert. That's a misstatement in the in the head. That's a typo. It really is a typo because I didn't even assert plain error. Well, you did. But it's been error didn't air. Well, the fact is the fact that the word good was used in one of the conversations makes all that of the kind of irrelevant. That's correct. It was used by the defendant and by the other individual on the call. But it should have been a 702 witness rather than a 701. Whether or not it was correctly articulated in the brief, the government's position is that he was admitted as a 701. The evidence was admissible, but it was admitted on the wrong rule. He was an expert rather than a lay witness. That's your position

. And so there's nothing about swift that undermines the rationale of sprinkle. You don't get license to commit another crime to get away from officers based on your judgment. That the stop was unlawful. And so this case truly is on all fours with sprinkle. And so the government would ask that the court affirm the denial of the motion to suppress. Based on the ample evidence of reasonable suspicion. And in the alternative, the court may affirm on the basis of sprinkle. What about let me ask one other question. Any one of you talked about the. Expert testimony or the non expert testimony. You all in your brief sort of conceived that that's error, but it's probably harmless. We do not say don't take your head. No, because that's exactly what you say. That's even assuming if there were error. You go right to the point that it's harmless error. Well, what we argued is this is not arbitrary or irrational, which is the standard at this point under abusive discretion. And what the court was doing that we do argue in the brief. You're immediately go to harmless error. Our recollections that we argue that and you may well be right, but the court made all. Excuse me. The court made all the requisite findings under rule 702. We are heading actually heading in your brief. Item two, the district court did not plainly air in, but that's actually an error. Not a certifying this is an expert. That's a misstatement in the in the head. That's a typo. It really is a typo because I didn't even assert plain error. Well, you did. But it's been error didn't air. Well, the fact is the fact that the word good was used in one of the conversations makes all that of the kind of irrelevant. That's correct. It was used by the defendant and by the other individual on the call. But it should have been a 702 witness rather than a 701. Whether or not it was correctly articulated in the brief, the government's position is that he was admitted as a 701. The evidence was admissible, but it was admitted on the wrong rule. He was an expert rather than a lay witness. That's your position. What judge Whitney's ruling, what he was going for, and he does this in other cases as well, is to make the findings under rule 702 that the witness is qualified based on training and knowledge and experience. What he doesn't do is give them the stamp of expert in front of the jury. So he's trying to help the defendant. Correct. It's a ruling. Well, there you go. That's a good explanation. In his discretion, he didn't label him as an expert because that way have been prejudicial to the defendant. He was trying to help the defendant. Correct. And even if I didn't explain it well in my brief, he explains that in the record. That's the reason he's doing it. But he really is finding that he's a 702 witness rather than a 701, but he's letting the jury think he's a 701 witness, which is a lay opinion. But he didn't need any expert as Judge Boyd correctly points out because he talked about a gun. He's talking about an iron burner. I mean, you don't need to have a lot of common sense. The jurors come in there with common sense. Especially when in the next line, he's actually referring to it as a gun. I mean, from the context, it's clear. All right. Let me just ask on a sprinkle case. Yes. The sprinkle case was an instance where officers approached the defendant. They're going to pack down on something that effect. Defend it. Then. Tempts to run, but he also pulls out a gun. And then he shoots at the officers. And the court says. Is that crime of shooting at the officers that makes it a distinct one? And here what you have is a defendant who. If we hold in that manner has been illegally stopped. And so in the presence of being illegally stopped. He leaves. He peels out tire squealing and was charged with reckless driving. He was driving so fast that the officers ran back to their car. And the testimony has gave it everything that's got and never saw him again. And so it's certainly not as egregious as shooting at the officers who would never maintain that

. What judge Whitney's ruling, what he was going for, and he does this in other cases as well, is to make the findings under rule 702 that the witness is qualified based on training and knowledge and experience. What he doesn't do is give them the stamp of expert in front of the jury. So he's trying to help the defendant. Correct. It's a ruling. Well, there you go. That's a good explanation. In his discretion, he didn't label him as an expert because that way have been prejudicial to the defendant. He was trying to help the defendant. Correct. And even if I didn't explain it well in my brief, he explains that in the record. That's the reason he's doing it. But he really is finding that he's a 702 witness rather than a 701, but he's letting the jury think he's a 701 witness, which is a lay opinion. But he didn't need any expert as Judge Boyd correctly points out because he talked about a gun. He's talking about an iron burner. I mean, you don't need to have a lot of common sense. The jurors come in there with common sense. Especially when in the next line, he's actually referring to it as a gun. I mean, from the context, it's clear. All right. Let me just ask on a sprinkle case. Yes. The sprinkle case was an instance where officers approached the defendant. They're going to pack down on something that effect. Defend it. Then. Tempts to run, but he also pulls out a gun. And then he shoots at the officers. And the court says. Is that crime of shooting at the officers that makes it a distinct one? And here what you have is a defendant who. If we hold in that manner has been illegally stopped. And so in the presence of being illegally stopped. He leaves. He peels out tire squealing and was charged with reckless driving. He was driving so fast that the officers ran back to their car. And the testimony has gave it everything that's got and never saw him again. And so it's certainly not as egregious as shooting at the officers who would never maintain that. But it is an intervening unlawful act that puts the community, the defendant, the officers at risk. And so that. He's an individual who has been illegally stopped. In an area of high crime. By individuals who in uniform, but the right around the car with no lights on. At night. And what's sprinkled the analysis of this court says is you're the indefense judgment of the legality of the stop does not give him license to commit a new crime. It seems that sprinkled really turned on the fact that guy turned around and shot at those officers. I mean, I said real crime. That's totally distinct from what's what's happened here. That had nothing to do with the pat down of the stop. But leaving has everything to do with an illegal stop. Whether you squeal ties or whatever, that's part of the stop. But turning around and shooting a gun at someone is a totally distinct crime. It's certainly more egregious, but I the government doesn't concede that shoot a gun at the officers. Absolutely. Absolutely. And we are not analogizing driving off. But the sprinkler now. And in the other cases like that, that's what I'm trying to try and figure out. We've got this sprinkled case, but we found anything else that simply just indicates. Troveway, whether speeding tires or whatever. It wasn't in a manner to endanger the officers. They were actually he was actually leaving the officers never endangered the officer never did anything to him. He just left them. Well. And that's a. I mean, it's almost like they created the crime had they not stopped him illegally. He wouldn't have had a cause to speed away. Judge when the sprinkler's mind knowledge, then if he pulls out a gun and start shooting, that's. That's not going to be an excuse in the world for doing that. Sprinkle to my knowledge has not been applied in other publications, public, published cases in the circuit. The same analysis has applied in other circuits and. I thought it had. In published decision as to this issue. I know sprinkles often cited. We had a lot of time

. But it is an intervening unlawful act that puts the community, the defendant, the officers at risk. And so that. He's an individual who has been illegally stopped. In an area of high crime. By individuals who in uniform, but the right around the car with no lights on. At night. And what's sprinkled the analysis of this court says is you're the indefense judgment of the legality of the stop does not give him license to commit a new crime. It seems that sprinkled really turned on the fact that guy turned around and shot at those officers. I mean, I said real crime. That's totally distinct from what's what's happened here. That had nothing to do with the pat down of the stop. But leaving has everything to do with an illegal stop. Whether you squeal ties or whatever, that's part of the stop. But turning around and shooting a gun at someone is a totally distinct crime. It's certainly more egregious, but I the government doesn't concede that shoot a gun at the officers. Absolutely. Absolutely. And we are not analogizing driving off. But the sprinkler now. And in the other cases like that, that's what I'm trying to try and figure out. We've got this sprinkled case, but we found anything else that simply just indicates. Troveway, whether speeding tires or whatever. It wasn't in a manner to endanger the officers. They were actually he was actually leaving the officers never endangered the officer never did anything to him. He just left them. Well. And that's a. I mean, it's almost like they created the crime had they not stopped him illegally. He wouldn't have had a cause to speed away. Judge when the sprinkler's mind knowledge, then if he pulls out a gun and start shooting, that's. That's not going to be an excuse in the world for doing that. Sprinkle to my knowledge has not been applied in other publications, public, published cases in the circuit. The same analysis has applied in other circuits and. I thought it had. In published decision as to this issue. I know sprinkles often cited. We had a lot of time. I mean, I think I've tried to do that. Well, and then that's a lot of time that's the reality. Working on that case and somebody could have been an unpublished case. I don't recall. But it sprinkles applied for its the initial stop all the time. All right. Well, I just would say your honor that the act of driving away is exactly an off the unlawful is an unlawful act. And the defendant doesn't get to make a judgment. I mean, we've sat here and briefed this thing and talked about it. It wasn't it wasn't the running away they focused on because the guy turned around. He ran away from it. They said it the crime was turned around and shooting that gun at us. That's a distinct crime. The stink crime running away is part of what is going on here. If you have any legal stop, then you kind of feel a citizen might have a right to walk away from an illegal stop. And that would be it but not to turn around and shoot a gun. You don't have that. That's a distinct crime. Correct. And that's a different back pattern walking away. But sprinkle does say the defendant doesn't get to make a judgment about the legality of the stop and then take his own action at that point. And then the next morning, they issued warrants and he was arrested on those warrants for obstruction and reckless driving, which is also an arrest. And then they're going to drive. But they charge you with the destruction run away. And yes, the structure and the right to drive and driving away fast. Correct. Correct. But just a distinct relief and then they call it a charge with the structure just correct and then the distinct crime. Thank you. Thank you, Mr. Miller. We appreciate it. Mr. Carpenter. So I'd like to make a couple of quick points about the reason for suspicion before then turning back to sprinkle. The first is to clarify. I think Mr

. I mean, I think I've tried to do that. Well, and then that's a lot of time that's the reality. Working on that case and somebody could have been an unpublished case. I don't recall. But it sprinkles applied for its the initial stop all the time. All right. Well, I just would say your honor that the act of driving away is exactly an off the unlawful is an unlawful act. And the defendant doesn't get to make a judgment. I mean, we've sat here and briefed this thing and talked about it. It wasn't it wasn't the running away they focused on because the guy turned around. He ran away from it. They said it the crime was turned around and shooting that gun at us. That's a distinct crime. The stink crime running away is part of what is going on here. If you have any legal stop, then you kind of feel a citizen might have a right to walk away from an illegal stop. And that would be it but not to turn around and shoot a gun. You don't have that. That's a distinct crime. Correct. And that's a different back pattern walking away. But sprinkle does say the defendant doesn't get to make a judgment about the legality of the stop and then take his own action at that point. And then the next morning, they issued warrants and he was arrested on those warrants for obstruction and reckless driving, which is also an arrest. And then they're going to drive. But they charge you with the destruction run away. And yes, the structure and the right to drive and driving away fast. Correct. Correct. But just a distinct relief and then they call it a charge with the structure just correct and then the distinct crime. Thank you. Thank you, Mr. Miller. We appreciate it. Mr. Carpenter. So I'd like to make a couple of quick points about the reason for suspicion before then turning back to sprinkle. The first is to clarify. I think Mr. Miller may have missed smoke when he said that at the time they met him, he was headed into the dead end at the cult of stack. That's not right. If you look at the government's brief, even at page five, they acknowledge that at the time stacks was pulling had pulled out of the third hill, parking lot and was proceeding the opposite way on West Park. So that's confirmed everywhere in the record if you look at testimony. The other point that the government relies on the fact that officer Williams first said, well, he looked like he was lost, but then he discounted that possibility because he hadn't stopped for directions. The notion that you have to stop for directions these days is a relic from the 80s. I mean, today if you're lost, you pick up your cell phone and you call someone and say, hey, where am I going? Where was I supposed to meet you? Where you punch your address where you want to go into Google Maps? It's totally unreasonable. I can't keep my head more than those Google Maps in there. Exactly. And so the fact that he didn't stop can't be the basis for eliminating the possibility that he was simply lost. It's just unreasonable for the officer to use that as the basis. I want to touch quickly also on bumpers, which Judge Floyd mentioned. There are a couple of key distinctions between this case and bumpers. The first is that in bumpers, the officers believed that they had just observed an illegal activity. They believed that they had just seen the men trespassing. And so they stopped to investigate whether that crime that they thought had just happened had in fact happened. Here, the officers are taking purely preventive action. They don't say that he committed a traffic offense. They don't say that they saw him commit any kind of offense. This is a case where they're doing a preventive stop. And so I think bumpers is distinguishable on that ground and also on the ground that the men there unquestionably took evasive action by walking briskly away from the officers, which again we have the opposite here slowing down turning towards the officers. I want to get to the sprinkled doctrine because there was a lot of talk about that. The first thing I want to say, Judge King, you ask about whether this we have to retry the case. And the answer is absolutely yes. The government doesn't even argue in its brief at any point that this error was harmless. They never argue for the court to affirm on that basis. The court should consider any argument to that effect to be abandoned. And it wouldn't have merit anyway. But you say we can't consider sprinkle. No, we can consider sprinkle surely. And I think we can consider the harmlessness of the illegal stop. I don't think you can consider harmlessness in the sense of a retrial. So what we have to do. So we have to sit it back for a retrial. I think it would have to be sent back. The government would make a decision as to whether they think they can prove their case without the evidence that must be suppressed. If you look at the Supreme Court's decisions in Murray, it outlines what happens in a situation like this

. Miller may have missed smoke when he said that at the time they met him, he was headed into the dead end at the cult of stack. That's not right. If you look at the government's brief, even at page five, they acknowledge that at the time stacks was pulling had pulled out of the third hill, parking lot and was proceeding the opposite way on West Park. So that's confirmed everywhere in the record if you look at testimony. The other point that the government relies on the fact that officer Williams first said, well, he looked like he was lost, but then he discounted that possibility because he hadn't stopped for directions. The notion that you have to stop for directions these days is a relic from the 80s. I mean, today if you're lost, you pick up your cell phone and you call someone and say, hey, where am I going? Where was I supposed to meet you? Where you punch your address where you want to go into Google Maps? It's totally unreasonable. I can't keep my head more than those Google Maps in there. Exactly. And so the fact that he didn't stop can't be the basis for eliminating the possibility that he was simply lost. It's just unreasonable for the officer to use that as the basis. I want to touch quickly also on bumpers, which Judge Floyd mentioned. There are a couple of key distinctions between this case and bumpers. The first is that in bumpers, the officers believed that they had just observed an illegal activity. They believed that they had just seen the men trespassing. And so they stopped to investigate whether that crime that they thought had just happened had in fact happened. Here, the officers are taking purely preventive action. They don't say that he committed a traffic offense. They don't say that they saw him commit any kind of offense. This is a case where they're doing a preventive stop. And so I think bumpers is distinguishable on that ground and also on the ground that the men there unquestionably took evasive action by walking briskly away from the officers, which again we have the opposite here slowing down turning towards the officers. I want to get to the sprinkled doctrine because there was a lot of talk about that. The first thing I want to say, Judge King, you ask about whether this we have to retry the case. And the answer is absolutely yes. The government doesn't even argue in its brief at any point that this error was harmless. They never argue for the court to affirm on that basis. The court should consider any argument to that effect to be abandoned. And it wouldn't have merit anyway. But you say we can't consider sprinkle. No, we can consider sprinkle surely. And I think we can consider the harmlessness of the illegal stop. I don't think you can consider harmlessness in the sense of a retrial. So what we have to do. So we have to sit it back for a retrial. I think it would have to be sent back. The government would make a decision as to whether they think they can prove their case without the evidence that must be suppressed. If you look at the Supreme Court's decisions in Murray, it outlines what happens in a situation like this. It says the exclusionary rule extends to quote testimony concerning knowledge acquired during an unlawful search. That means the officers can't testify as to their observations during the search, which means they can't testify to placing him in the area that night. It also applies to evidence that it's otherwise acquired as an indirect result of an unlawful stop. That's exactly what we have here. We have a direct causal chain. Unlawful stop leads to the issuance of an invalid warrant, which leads to the issuance that are the unlawful arrest the next morning. And the jail calls that were then made are also a part of that very direct causal chain. I thought that we have some cases that say that if there's an error, we, even though the government doesn't argue harmlessness, we consider it. I'm under the law. Why would we just have to if we can't reverse on an error unless it affects the substantial rights of the defendant? Well, I think so the rule 52 I think it is, brings harmlessness in it. If you look at the Powell decision from 2011, and I know Judge King, I think you're descended in that one, but I think Judge Floyd was on the other side. The footnote in that case, Judge Shed notes that in oral argument, the government had raised an issue an alternative basis for a firmance. And the footnote, Judge King says there, when the government doesn't raise it in its brief, we will we will consider it abandoned. I think that's what the court should do here. Any of it. Judge Shed. Judge Shed. You didn't descend on that point. Regardless, the fact that the office was able to testify about what happened during that was a critical point in their case. I mean, as Mr. Miller acknowledged, maybe that's different though from harmlessness because what rule 52, that's not the right number. It says even though there's no error will be recognized unless it affects the substantial rights of the defendant. So if there is error and it doesn't affect your client's substantial rights, conviction would be a firm. So that brings in analysis of whether the error was prejudicial. Well, I'll can see that for the moment and go to sprinkle because I think that's really the crux here. And there was a lot of sort of confusion about that. Our argument, first of all, is not that the swift decision from the North Carolina of Hallock Court somehow undermines sprinkle. We think sprinkled doctrine, I mean, it is what it is. If the person commits a new and distinct crime, that purges the taint. The problem here, the reason spring does that. The responsibility is governed by the federal rules anyway. It wouldn't be governed by North Carolina. Exactly. So there's no way that the North Carolina courts could overturn that anyway. But the key point here is that under North Carolina law, his flight did not constitute a new and distinct crime. If you look again at state versus swift, that sets out what is a North Carolina crime? And as Judge Wynn pointed out, the key in sprinkle was the person fired a shot, which Judge Michael noted in that decision was a violation of South Carolina law. There is no violation of North Carolina law here if you conclude that the stock illegal as swift itself

. It says the exclusionary rule extends to quote testimony concerning knowledge acquired during an unlawful search. That means the officers can't testify as to their observations during the search, which means they can't testify to placing him in the area that night. It also applies to evidence that it's otherwise acquired as an indirect result of an unlawful stop. That's exactly what we have here. We have a direct causal chain. Unlawful stop leads to the issuance of an invalid warrant, which leads to the issuance that are the unlawful arrest the next morning. And the jail calls that were then made are also a part of that very direct causal chain. I thought that we have some cases that say that if there's an error, we, even though the government doesn't argue harmlessness, we consider it. I'm under the law. Why would we just have to if we can't reverse on an error unless it affects the substantial rights of the defendant? Well, I think so the rule 52 I think it is, brings harmlessness in it. If you look at the Powell decision from 2011, and I know Judge King, I think you're descended in that one, but I think Judge Floyd was on the other side. The footnote in that case, Judge Shed notes that in oral argument, the government had raised an issue an alternative basis for a firmance. And the footnote, Judge King says there, when the government doesn't raise it in its brief, we will we will consider it abandoned. I think that's what the court should do here. Any of it. Judge Shed. Judge Shed. You didn't descend on that point. Regardless, the fact that the office was able to testify about what happened during that was a critical point in their case. I mean, as Mr. Miller acknowledged, maybe that's different though from harmlessness because what rule 52, that's not the right number. It says even though there's no error will be recognized unless it affects the substantial rights of the defendant. So if there is error and it doesn't affect your client's substantial rights, conviction would be a firm. So that brings in analysis of whether the error was prejudicial. Well, I'll can see that for the moment and go to sprinkle because I think that's really the crux here. And there was a lot of sort of confusion about that. Our argument, first of all, is not that the swift decision from the North Carolina of Hallock Court somehow undermines sprinkle. We think sprinkled doctrine, I mean, it is what it is. If the person commits a new and distinct crime, that purges the taint. The problem here, the reason spring does that. The responsibility is governed by the federal rules anyway. It wouldn't be governed by North Carolina. Exactly. So there's no way that the North Carolina courts could overturn that anyway. But the key point here is that under North Carolina law, his flight did not constitute a new and distinct crime. If you look again at state versus swift, that sets out what is a North Carolina crime? And as Judge Wynn pointed out, the key in sprinkle was the person fired a shot, which Judge Michael noted in that decision was a violation of South Carolina law. There is no violation of North Carolina law here if you conclude that the stock illegal as swift itself. He could take off without obstructing judgment. He can take off without if he stopped illegally under North Carolina law. His flight, according to Swift, cannot be considered as a circumstance to establish probable calls for arrest. That applies both to the obstructing arrest and to the reckless driving arrest. There's a case directly on that point in North Carolina law that I regret. I didn't cite in the briefs, but I should have it state versus Williams. It's a citation is 231, South Eastern reporter second, 282. It's a 1977 Appellate Court case in North Carolina setting out the law of North Carolina. It's a previous decision in Borland for the proposition that I want to quote here. The defendant could not be convicted for reckless driving and speeding when the offense was committed in fleeing to avoid an unlawful arrest. That's exactly what happens here. If you conclude that this initial stop was in vowel, then his flight was not in any way a criminal offense under North Carolina law. It's here under Swift and under Williams that the two warrants for obstruction and reckless driving that were issued were invalid if the initial stop was invalid. That's why all of the evidence, including the jail calls at the end. That's what I'm saying you have right to run from a police. Under North Carolina law absolutely do. In fact, under North Carolina law is North Carolina law and sprinkle turns not on the mere act of flight but on the commission of a new and distinct crime. Judge Michael footnoted in that decision that the court did not need to address the issue of whether flight alone would be a sufficient basis to purge the taint of an unlawful stop. This court has not subsequently decided that issue and again the government does not raise that issue as an alternative basis. It doesn't say flight alone was enough. It like Judge Whitney relies solely on the sprinkled doctrine which only applies if you have a new and distinct crime. So for that reason and again I point to the court also to footnote three in Judge Whitney's opinion where he says well I think these jail calls are admissible. That's the only thing that his alternative holding extends to. He kind of reserves the question of whether identity evidence by itself would come in and sort of suggest that he would have to decide that down the road. That's another reason the court would need to send it back so that Judge Whitney could flush out in the first instance exactly what degree of identity evidence comes in. Thank you very much, Mr. Carpenter. We appreciate it. We'll come down and read counsel and then call the next gate.

The Honourable, the Judges of the United States Court of Appeals for the Fourth Circuit. Oye, oye, oye, all persons having any manner or form of business before the Honourable, the United States Court of Appeals for the Fourth Circuit are admonished to draw an eye and give their attention for the court is now sitting. God save the United States, this Honourable Court. Be seated. We want to welcome all of you here to the Fourth Circuit. Thursday, January 30th. We have two interesting cases this morning. The first one is the United States versus Stacks. Mr. Carpenter, good to have you, sir. Thank you. Does Michael would be proud of you? Thank you. May it please the Court. The traffic stop in this case violated the Fourth Amendment because Mr. Stacks had not committed any traffic offenses, had not violated any other laws. And with all things considered, the officers had no good reason to believe that criminal activity was imminent. The district court is holding the government's defense of it on appeal in this case, suffer from two. That a crime wave going on up down that street, though. Well, we certainly acknowledge that this is an area that was a high crime area, at least with respect to vehicle break ins. And there's no doubt that that factor is in. But the court has repeatedly held that even in high crime areas and even late at night, those factors alone aren't enough to stop just anyone who's present in that area. There has to be particularized suspicion that the individual is engaged in or about to be engaged in criminal activity. And here the court's holding that that standard was met suffers from two overarching flaws. The first is that it's inconsistent with this course decision and foster. And the second is that rather than conduct a true totality of the circumstances analysis, both the district court and the government cherry pick. By ignoring key contextual factors that undermine reasonable suspicion. So if we turn first to the foster problem, the court said in that case that the government quote must do more than simply label a behavior as suspicious to make it so. That's exactly the problem we have here. The core of the district court's holding is its belief that Mr. Stax was acting suspiciously by driving through three hotel parking lots without stopping or without ever getting out of his car. But neither the officers on the scene nor the district court nor the government and its appeal has ever articulated why someone looking to break into a car would drive around in that matter. And that's where this case presents a stark contrast with the Terry case that the government relies on. In that case, the officers also observed a peculiar pattern of behavior two men pacing back and forth in front of a store a dozen times over a 10 to 12 minutes span. In that case, though, the officer testified that he recognized that activity he'd seen it before in his experience surveilling downtown Cleveland. He believed that the men were casing the store and were about to launch an armed robbery attempt here by contrast these officers testified that they didn't know what Mr. Stax was doing. They thought it looked as if he was lost. They thought it looked as if he was looking for a police space because his office was suspicious. But that's not enough to think he's suspicious. I mean, certainly what he was doing was unusual. It was something they didn't see in their other in their other observations, but that's not enough. They need to be able to articulate why that unusual driving slowly, right. I don't think there's anything in. He's driving by himself. You already looked to the right, which was towards the parking lot. He didn't ever look to the left. Everything on the left was closed on the right. You had three hotels that were open for the morning. It was 4.30 in the morning, but there are lots of innocent explanations for that kind of activity. As the officers themselves said, they thought it looked like he was lost. He gave an explanation. That wasn't even taking his girlfriend to work. Well, I'm sure you didn't have a girlfriend in the car when they saw him. There was certainly some degree of miscommunication or confusion there. I don't know if Mr. Stacks got nervous and didn't explain himself well or if the officers just misunderstood my understanding of what actually happened that night, although it's not in the record because it's not really relevant, is that he was meeting actually a girlfriend there and out of town girlfriend who'd come to visit and was staying at one of those hotels. That's not what court found. Well, that's true. And the reason... That's not what I'm excited about the court of the ones we had to deal with. I don't question your version, but the facts that the court found are the ones we had to rely on unless they're clear error. That's right. And what he told the officers he was taking his girlfriend. He was dropping his girlfriend off at work, perhaps the inference of Audrey was that she must be working in one of these hotels. Well, they didn't add a cedar in the car and then he gave me his license. And then he took off. Well, the officer holding his license. That is an accurate recollection of the facts. But the important point here is not what he told them what he said when he was stopped. The officers needed to have a reasonable suspicion before they initiated the stop in the first place. So the reason that he's actually there while it was an innocent reason is not relevant. What is relevant is what the officers perceived at the time. And if you look at their testimony, they have never articulated why they thought this driving pattern suggested that he was about to break into a car. If you look at their testimony, what they say is, well, he was doing something unusual. We didn't know what it was, so we wanted to stop him to investigate further. But were the officers limited to just the kind of behavior that would be reflective of why they were there breaking up the cars? I mean, if they saw behavior that would indicate some type of criminal activity as a foot, are they able to use that as a basis for reasonable suspicion? In theory, sure, but they didn't articulate any other basis. They didn't say that they thought he was engaged in drug activity. They thought he was engaged in any other kind of activity. All they said is that it looked like he was doing something different. They didn't know they wanted to investigate further. And the district court's basis was solely relying on the notion that what he was doing was consistent with a vehicle break in, which was the crime spree that Judge King referenced in this area on this particular street was solely limited to break into vehicles that are parked in these lots. It wasn't a more generalized high crime area. And so, and the other big crime criminal conduct, they could have been looking for a dead making, dead making, a reasonable suspicion of something, something to miss. Well, reasonable suspicion of criminal activity, not just reasonable suspicion of unusual activity. Even the court has held again and again in cases like Foster, Massonberg, Sprenkel, that simply because the officer see something that's unusual, that's strange, that they don't recognize, that's not enough unless they can articulate a basis for believing that that unusual activity is likely to be indicative of criminal activity rather than innocent, but unusual activity. The reason why the police officers in this methodical driving would indicate maybe he's casing the car. Well, that may be accurate if he had focused on a particular set of cars or if he had done this multiple times. And that's where we have a big contrast. He did multiple times. He drove into what three parking lots. Right, but he never focused on a particular set of cars. He simply drove... By himself, slowly, looking to the right, which is where all these parking lots for these hotels were, and he drives through three of the parking lots. Slow. Well, again, there are all kinds of innocent explanations for that. But the officers could infer what has been exploited. Well, I think the reason that inference is an unreasonable one is that there's no reason... It's hard to explain why in the world that activity is what someone would do who was looking. If you hypothesize that he's coming here to break into a car, why would he drive around in this manner? It wouldn't allow him to see inside the cars. I mean, he's driving around a little too-dour sedan. He can't... It's not as if he's driving a big escalator, a hummer where he can peer down into the cars and see what's valuable sitting on the seats. He has no way to see what's inside the cars from his vantage point. And that's where this case presents a very stark contrast with what's happening in Terry. There's in Terry it's easy to articulate why what the men were doing would have facilitated them in undertaking an armed robbery. By pacing back and forth in front of this store, they can see the layout of the store. They can determine how many employees are there that day and where within the store they're located. They can identify valuable items around the store that they might steal when they launch their robbery attempt. None of those things. So in that case, there's a very logical and easy to see explanation for why what the men were doing would have led to, would have facilitated a criminal act. Here, this unusual activity driving through these three parking lots, never stopping, never getting out of the car, would not have facilitated Mr. Stacks and breaking into one of these cars. What would have been suspicious is if he had gotten out of his car, walked around the parking lots on foot, peered into these cars. That would have allowed him, you know, that would have, there would be innocent explanations for that potentially, but it would also lead to a reasonable inference that what he was doing was going to facilitate a crime of breaking into one of these cars. And that's missing. That's a difference from Terry. The other overarching problem with the government's analysis is that they omit some key contextual factors that undermine the reasonable suspicion finding. The first thing that the court and the government failed to acknowledge is that at the time of this stop, Mr. Stacks had exited these hotel parking lots and was driving out of the area on the West Park Drive. What that should tell us is that even if these officers were concerned while he's driving through these parking lots that is just fully said, maybe he's casing a car. When he pulls out of the final lot without ever having stopped and heads out of the area, any concern that he's about to break into one of these cars should have dissipated. And that again distinguishes this case from Terry and from this course decision three years ago in the United States versus Glover, which is cited in the briefs. Both of those cases deal with preventive police action like we're dealing with here, where the police haven't observed their criminal offense. They haven't observed the traffic offense, but they make a stop because they think something might be up here in a few minutes. In both Terry and Glover, the courts emphasized that we're dealing with the threat of imminent criminal activity. That's why Terry relies so heavily on the fact that police on the beat need to make instantaneous decisions. Same thing in Glover. Both stopping the defendant had the officers obtain his license plate number. No, they had not. The testimony was that they began to type in the, they began to type in the license plate number as they pulled up behind him and but had not finished it by the time that the blue lights were initiated. That's pretty clear on the. And his license plate number before they stopped. They did they did not have his license plate number until after the blue lights had initiated and he had come to a stop. The district court. They pulled him behind even they. They got to rest. That's right. They pulled him behind the officers testimony was I believe it was officer over most driving Williams was writing shotgun. He tells Williams testified that they pulled in behind the guy initiated the blue lights and he stopped and he had began in the midst of that time to type in the license plate number. It was clear that it hadn't been fully obtained until after the blue lights were on. The other factor that I think the government and the district court. Omit in their analysis is they put a lot of weight on the nature of Mr. Stax's reaction when he comes into the police presence. But they failed to acknowledge that at the time he passed this car it was 4 30 in the night. It was completely dark outside and the officers were driving with their headlights off. His reaction in that circumstance is under markable. I think all of us would react in the same way. We'd look surprised. We would turn to see what in the world is happening with that car that just drove that car head lights off. But he saw that the fellas in it were in police uniform. They they were a policeman at that point. They speculated that he knew they were policemen. Obviously we don't look at him closely. Well, it indicated. Even if we assume that their speculation is accurate. I want to contrast his reaction here to the type of nervous and evasive behavior that we typically see in these kinds of cases. Normally the court said that if people speed away, and you know, normally in these cases people speed away. They run away. They hide their faces so that police can't see them. And the court said, well that's nervous and evasive behavior that properly factors into the reasonable suspicion. Calculate. Here, Mr. Staxley, the exact opposite. He turned to look towards them and he slowed down his car. At least to the question of how could he have reacted in this situation that wouldn't have been suspicious to the officers. We know from previous cases that if he sped away, if he looked nervous. Any reaction at all they would have considered suspicious. Exactly. And this court just last year in the United States, the sources black rejected that kind of false dichotomy where the officers, the Charlotte Police officers there, had said. He was overly cooperative, so we thought that was suspicious. Well, the court said no, no, that puts him on pins and needles. If he's uncooperative, if he's nervous and evasive, that suspicious. If he's overly cooperative, that suspicious. He's speeding a suspicious. He slows down a suspicious. Exactly. The court rejected that kind of false dichotomy in black. It should do the same thing here. South is suspicious. Is going north is suspicious. Exactly. And the court has rejected reliance on those kinds of facts before. We ask it to do the same here. I want to ask you a question over for you. Sure. Sure. You just focused on that one issue. We got another issue. If you should prevail on that issue. Don't you still have a problem. Underbinding the conviction. So there. No, is the is the short answer to that question. But if you have a few minutes to explain. I'm not asking you. Well, I just want to set that up for the prosecutor. Okay. Well, I'm happy to address it on her bottle. Whichever the court version is that you. If you if you went on your regional cessation issue, that's the end of the case. Well, yes, I think that is the end of the day. The governor's going to say it's not. Indeed, they say that you concede or I think in your brief that maybe they haven't still have a case without it. So what the government had said before the suppression motion was decided that if the initial stop was on constitutional, what that means is they can't introduce the eyewitness testimony from the officers. That to which would place Mr. Sachs in the area that night. Without that connection to the area where the gun was found, I think it would be impossible for the government to prove their case. And that's why before the suppression motion was decided, they said it judge Whitney, if you disagree with us and think this stop was invalid, we'll dismiss the indictment. They said back then that's what they wouldn't prosecute, but now they got a conviction. And that but anyway, certainly they could change the mind. We'll think that up if we need to. Mr. Miller, you agree with all that? May I please the court, William Miller on behalf of the United States. As the district court correctly found, there was ample evidence to support a finding of reasonable suspicion in this case. The defendant has conceded that this area was a hotspot for the exact type of crime that or for vehicle break ins. And they concede that this time of early morning hour also properly factors into the reasonable suspicious analysis. The key dispute here is over whether or not the defendant's behavior in that environment led to particularized suspicion sufficient to support a stop. And the government's contention is that driving up and down these rows of cars is exactly the same type of suspicious behavior that was presented in Terry. Mr. Carp, this is exactly the same category as in Terry. This is a classic Terry case. Mr. Carpenter listed three facts from Terry that went into officer McFadden's reasonable suspicion in that case. He mentioned the fact that the casing could allow the defendant to take a look at the layout, ascertain the number of employees and target valuable goods. That's exactly what the defendant in this case could have ascertained from driving up and down these rows of cars. You could get the layout of the parking lots. You could see the number of employees, any cameras that were around. It's a reasonable inference based on the fact that you could draw that from anybody that drives by car. You could infer that someone who drives around a parking lot a few times and say, well, they had a chance to case the cars. Look around and see what was going on. What's different in this space area where crime has occurred. That's correct. That's what differentiates this case, Your Honor. It's 4.30 in the morning when the defendant's engaging in this type of behavior. It's not a crime to drive around 4.30 in the morning. No, and the officers don't have to have even close to probable cause of a crime to justify Terry stop. This court has said it doesn't even have to come close to a preponderance of the evidence. But someone who's driving in a car and as the finding of facts indicate he didn't stop, he didn't talk to anyone. He never got out of the car. He's just driving his car around. I mean, you really got to do some inferring to determine he is involved or about to be involved in a crime. Particularly for the one, the type of crime they're looking for. Judge, when there are, and in these cases, the experience of the officers and the way they view things, this court does credit their experience. And the two officers in these cases had over 40 years of experience between the two of them. And so their observations of this defendant's behavior and how it's different from everyone else they saw that morning is an appropriate consideration for this court in determining whether or not. I mean, if they kind of stayed in place and this was going to happen, I mean, there could be a decision to move from their spot without the headlights on. If anything looks suspicious, that looks suspicious. And then the court holds it against the defendant, but turned his head around. And I don't know what that means. I suppose anybody driving around 4.30 in the morning, you see another car with headlights around creeping or moving through a lot in this particular area. You would like me to turn you head around too. I'd like to address both of your points. They're the first being the duration of the observation. The officers and officers in this case did exactly what Terry and this court's president hired for six to seven minutes. I believe the test is. Six to seven minutes from the time his car came into view until they pulled the driver. That's correct, Judge King. So what he was driving a Cadillac? Yes. Does that have anything to do with? I don't believe that that was a factor. I just wanted to bet fact he's driving around the Cadillac. No, but what they did observe, Virginia, I'd have a lot of maybe people think of something about that. But what they did observe in that six to seven minutes was this defendant's behavior was different from everyone else they'd seen. And so by watching him go through all these parking lots and repositioning themselves. How much was always looking one side rather than the other looking to the right? The fact that he is focused on the hotels and the cars is a fact that factors into the reasonable suspicious analysis here in the totality of the circumstances. By itself, it may not be enough, but that's not what you got to look at all of it. But the fact he had a driving a Cadillac doesn't come in. It could be driving an old crappy forwarder shot. I don't know that that was a factor that that anyone's referenced at this point of the court relied on below. But to the point about the six to seven minutes of observation, during that time, they did exactly what this court requires, which is to determine whether or not the defendant's conduct is different from a substantial portion of innocent travelers. These officers had seen a half a dozen cars come in the time prior to seeing the defendant. All those folks went straight in, made deliveries, went into the front office. They all had business at the hotel. The defendant on the other hand was methodically driving up rows of cars in three parking lots. The defendant cites repeatedly officer Williams testimony about the defendant appearing to be lost or like he was looking for a parking space. But that's a mischaracterization of the testimony because officer Williams went on to say that that was his initial impression, but that after he continued to observe the defendant, he realized that behavior is not consistent with someone who was lost. And the defendant didn't stop at any of the parking spaces. And so to cite that initial impression that the defendant appeared lost or like he was looking for a parking space, that's the type of cherry picking that the defendant has accused the government of doing when viewed in its full context. The officers here took their time and observed the defendant long enough to distinguish him from other innocent travelers until your second point judge went about the defendant's reaction. The officers during their testimony certainly said, yes, it would have been fairly normal, I think, was the quote for someone to look at us at that moment for us to catch their attention. It wasn't normal to them was the defendant's reaction of coming to a near complete stop, sitting up in the seat and turning his whole body around 180 degrees and appearing surprised. And so there's no question that if you encounter another vehicle at 430 in the morning without your headlights on, you're going to react. But these officers... Unless you are out there trying to meet somebody and then you happen to see a car and it's as light as a light saw and you look in the sea if that's who you intend to meet. That seems more consistent than someone who's trying to rob a car. And there may be innocent explanations, it's not the government's responsibility, it wasn't these officers responsibility to eliminate every possible innocent explanation. The question is whether or not they had reasonable suspicion to stop the defendant to do further investigation. But that's more than just speculation and more than just individuals who would rob and around and are pocket a lot. I mean, that's the average citizen and I don't think you're held to a standard, you've got to conform your behavior to that which other people in the area are doing. You know, in a country where you can ride around if you want to and you can do things. And reasonable suspicion is a low threshold, I grant you, but it just seems, you know, why wouldn't they just wait a little longer and with the old experience they got and and you know, let this thing progress to a point where they think they have that suspicion. The government's position is they had the requisite reasonable suspicion when they executed the stop and I agree with your honor that the defendant's reaction and isolation would certainly not have been enough to rise to the level of freedom. We've even got cases in the full circuit where if a defendant doesn't react to the officer, that's suspicious. It's interesting, you know, if he reacts is suspicion, it doesn't react. Well, a normal person would have reacted. And I don't know how we deal with those kind of cases. The threshold is pretty low, but it requires a little bit more than just speculation. Right, I think it is important here, your honor, that the officers did acknowledge that it would have been fairly normal to have some reaction, but what they saw went beyond what they would have expected. You agree that it would be normal for them to react, him to react when he saw the car without light. Absolutely, I think we would all agree that they would be normal for him to react somewhat when he saw the car without lights with two uniform golfsters inside. And that's the moment that might have suspected that they were out of proud of steel cars in person, please all. Well, I don't know if that's a, that would cause him to turn 180 degrees. At this point, your honor, given that the district court suppressed this evidence, we view the evidence in the light and most favor the government. I think that would require viewing it in the light. But that particular part of this thing is the government's construction of it is kind of troubling that that was something abnormal or something when they're running without light. And I would concede your honor that in isolation, in isolation, that doesn't help you though. That doesn't help us a lot, but I think it's also important that like all of us, these officers expected some sort of reaction. It would have been fairly normal, but they're testimony in what they perceive. When we were looking at first, they weren't impersonating officers and they're analyzing his reaction, whether it was suspicious or not enough for them to pull him over. And that's the point you got. And that's what Judge Whitney had to deal with. I mean, he was concerned about this too, but he had a couple of hearings. Well, and then tried to get you all to depulate or work something out or find something. Judge Whitney's concern was whether or not there was an alternative basis to affirm. I think his order very clearly states that there was ample evidence to justify this stuff. He had two hearings, right? That's correct. And in our district, that's not a typical with Judge Whitney. That's not a typical. That's routine kind of thing. We are frequently called upon to provide additional briefening for the honorable Judge Whitney in our district. And I don't think he would mind me saying that. The other point that the defendant makes is... And he's former prosecutor. He was you asternied on her. Yes, your honor. And was an assistant for a long time. He's been... He's seen a lot of these cases. That's right, Judge King. The other point that the defendant makes is that there was no specific testimony where the officers explicitly said that this methodical driving up and down the rows of cars is what exactly what we were out there looking for. And although there may not be that specific statement, it is the inevitable conclusion based on this testimony in this case. And the district court found twice that the defendant's behavior was in light of the officers training and experience consistent with largely from automobile and consistent with the type of crime typical of that area at that time of night. And I think a complete reading of officer overman and officer Williams testimony leads to that inevitable conclusion. Right in the middle of officer overman's description of the defendant's conduct, he reaffirmed that the surveillance that it was designed to stop people from breaking into cars. That's at page 36 of the Joint Appendix. And similarly, the prosecutor all asked officer Williams, you know, what were you looking for when you were out there doing the surveillance for for break ins. And he said we were looking for something out of the ordinary. He then described what was ordinary and contrasted that with the defendant's behavior. And so it's not a fair characterization of this record to say that somehow the officers failed to articulate why this behavior was suspicious. And in these types of cases, it's also fair to look trial testimony and how how the testimony there comes out as well. And during his trial testimony, officer overman was asked what was the basis for the stop. And the very first thing he mentions is that they were out there to detect and prevent vehicle break ins. I would submit to the court that it would have been irresponsible for these officers not to have at least stopped these the defendant long enough to. And when they stopped him, where was he going? Was he coming out of the lot? And I'm glad you asked that question, Your Honor. That's all an important clarification as well. At the time when the officers passed the defendant, he was headed straight into the dead end of a cul-de-sac. And so when he turned around and they initiated the stop, he was headed, you know, back toward the main road, but he also was going past all three of those hotels again. And the defendant says that this is something that which would indicate the possibility he would turn in and do a crime or. He was going right past the same three hotels he had just cased the parking lots of or at least driven up and down the rows of cars. And the defendant says that the fact that he's headed back in that direction somehow distinguishes this from Terry. But the defendant and Terry made the exact same argument. And he's seen the officers in these uniform. He's probably been alerted to the fact that they had he headed out and they stopped him. You see, they're there trying to prevent him from breaking in a vehicle. He's headed out. And there's no requirement officer just merely has to make his presence known to stop the behavior. I mean, that wasn't the standard in Glover, you know, the officer didn't have to just go stand by the parking lot attendant to get this guy to move on about his way. Once the officers have that suspicion, they're justified in conducting a stop to investigate it. All these cases are fact intensive and you know, we can write it anyway. You won't bumpers is a good example of that. Talk about the sprinkle ordinance. Certainly. We're just kidding. You said it back. Certainly, Your Honor. If I just may briefly finish the point about the Terry case and Terry, the defendant also argued that the men were walking away. But what the court says is although the trio had departed the original scene, there was nothing to indicate abandonment of an intent to commit a robbery at some point and that it was therefore reasonable to conduct the stop. And so that's not a distinction from Terry. I just wanted to make that clear as to your question about sprinkle judge Floyd. That case, even if the stop were determined to be unlawful, the evidence of the defendant's identity and jail calls would nevertheless be admissible in light of sprinkle. And the reason for that is you have to retry the case. I wouldn't have to go back retry because there have been a bunch of evidence about that stop. I have to come out with. I know your honor and the reason is that the fact that you'd be entitled to show that he ran. You'd be able to show that he was. And you could have put that in context for half. Correct. So that place is the defendant. There'd be some kind of a harmless air analysis to figure out whether the conviction is any good. That's what I was trying to get at. Right. And the critical pieces of evidence here are the defendant's present. This thing's effective. You know, that's the. That's right. Judge King and the critical pieces of evidence here are the defendant's presence. In that area, which in light of sprinkle would be admissible given that the. New crime purges the taint of the you know, arguably unlawful stop. And so here you would have the defendant's presence there that night. And critically, you would also have the jail calls where he then speaks about the gun talks about tossing the gun. All of that evidence would still come in. And those are the critical links. To the finding of guilt in this case. The driving in and out of the parking lots is the basis for the reasonable suspicion. But the only reason the prosecutor admitted that evidence during the trial. And she says as much during the transcript is just to provide context for the stop to let. You know, the jury know that this wasn't just a. A random pulling over tried to case without that evidence. You're saying absolutely and the defendant. If you had done that, you wouldn't have he wouldn't have this. We've been arguing for 25 minutes about the thing that you say didn't I mean do it with the government firmly believes there was reasonable suspicion in this case. And at that point, you know, the district government do the case. I'm actually convicted of possession of a firearm. That he was never seen with. Right. That's well that was found the next day. In this rubbery. Correct. And so the critical links in the testimony are the defendant's presence. There that night at and the jail calls the defendant objected to the prosecutor going. That's the critical thing that he ran. I mean, that's. That's evidence of guilty mind. Right. And the crime, the intervening crime that that purges the taint. The defendant objected below to the officer testifying about the basis for the officer's reasonable suspicion. And so we know from the record the relevance of that testimony in the government's mind because she says that she was just putting that in there. To, you know, indicate to the jury that this wasn't an unfounded stop. And so it was really just. The content. It's the whole thing. If it's bad, why wouldn't it taint the prospect of the fact that I'm getting a fair trial. Well, under acted suspiciously driving up down the road there. Under the night and in the. And was stopped and all that stuff. And if that if that is in fact without reasonable suspicion. Well, under a harmless air analysis. Some would have to be suppressed. Stuff related to that would would be subject to suppression. That's what. Mr. Carpenter saying. But then with the question is. What what's left in is or enough left to sustain the conviction. Or would you have to do it over. If you wanted to. And the language of sprinkle is that the intervening illegal act purges the taint. Of. The initial stop. And so in this case, the officer's observations of the defendant. They would still be admissible. There's no reason why that would be suppressed their firsthand observation. The evidence of his identity was what was obtained by the stop. His license drivers like. And that's what you got that you got that by stopping illegally. If you're assuming. I don't know what they don't give up your position at all. But assuming that there's something wrong with it. No, in this case is on all fours with sprinkle because the officers observed the defendant in the car. And then when they went up and approached him and as this court found unlawfully stopped him. He took off. Running. And so there was nothing about what happened before that prevented the government from proving. You know what happened after the shooting and the intervening unlawful act. And so sprinkle really is on all fours with this case. And if I may just briefly address the state versus swift that the defendant has cited as somehow undermining. The sprinkle case. That's a 1992 North Carolina Court of Appeals case where the court actually affirmed. The denial of the motion to suppress. And so the defendant cites that for the proposition. The sprinkles are case after that. It's after that and the proposition that the defendant cites. About you know somehow you get a license to commit a crime when you're unlawfully stopped. That's actually dicta. In swift itself, which is a 1992 court of appeals case. And so there's nothing about swift that undermines the rationale of sprinkle. You don't get license to commit another crime to get away from officers based on your judgment. That the stop was unlawful. And so this case truly is on all fours with sprinkle. And so the government would ask that the court affirm the denial of the motion to suppress. Based on the ample evidence of reasonable suspicion. And in the alternative, the court may affirm on the basis of sprinkle. What about let me ask one other question. Any one of you talked about the. Expert testimony or the non expert testimony. You all in your brief sort of conceived that that's error, but it's probably harmless. We do not say don't take your head. No, because that's exactly what you say. That's even assuming if there were error. You go right to the point that it's harmless error. Well, what we argued is this is not arbitrary or irrational, which is the standard at this point under abusive discretion. And what the court was doing that we do argue in the brief. You're immediately go to harmless error. Our recollections that we argue that and you may well be right, but the court made all. Excuse me. The court made all the requisite findings under rule 702. We are heading actually heading in your brief. Item two, the district court did not plainly air in, but that's actually an error. Not a certifying this is an expert. That's a misstatement in the in the head. That's a typo. It really is a typo because I didn't even assert plain error. Well, you did. But it's been error didn't air. Well, the fact is the fact that the word good was used in one of the conversations makes all that of the kind of irrelevant. That's correct. It was used by the defendant and by the other individual on the call. But it should have been a 702 witness rather than a 701. Whether or not it was correctly articulated in the brief, the government's position is that he was admitted as a 701. The evidence was admissible, but it was admitted on the wrong rule. He was an expert rather than a lay witness. That's your position. What judge Whitney's ruling, what he was going for, and he does this in other cases as well, is to make the findings under rule 702 that the witness is qualified based on training and knowledge and experience. What he doesn't do is give them the stamp of expert in front of the jury. So he's trying to help the defendant. Correct. It's a ruling. Well, there you go. That's a good explanation. In his discretion, he didn't label him as an expert because that way have been prejudicial to the defendant. He was trying to help the defendant. Correct. And even if I didn't explain it well in my brief, he explains that in the record. That's the reason he's doing it. But he really is finding that he's a 702 witness rather than a 701, but he's letting the jury think he's a 701 witness, which is a lay opinion. But he didn't need any expert as Judge Boyd correctly points out because he talked about a gun. He's talking about an iron burner. I mean, you don't need to have a lot of common sense. The jurors come in there with common sense. Especially when in the next line, he's actually referring to it as a gun. I mean, from the context, it's clear. All right. Let me just ask on a sprinkle case. Yes. The sprinkle case was an instance where officers approached the defendant. They're going to pack down on something that effect. Defend it. Then. Tempts to run, but he also pulls out a gun. And then he shoots at the officers. And the court says. Is that crime of shooting at the officers that makes it a distinct one? And here what you have is a defendant who. If we hold in that manner has been illegally stopped. And so in the presence of being illegally stopped. He leaves. He peels out tire squealing and was charged with reckless driving. He was driving so fast that the officers ran back to their car. And the testimony has gave it everything that's got and never saw him again. And so it's certainly not as egregious as shooting at the officers who would never maintain that. But it is an intervening unlawful act that puts the community, the defendant, the officers at risk. And so that. He's an individual who has been illegally stopped. In an area of high crime. By individuals who in uniform, but the right around the car with no lights on. At night. And what's sprinkled the analysis of this court says is you're the indefense judgment of the legality of the stop does not give him license to commit a new crime. It seems that sprinkled really turned on the fact that guy turned around and shot at those officers. I mean, I said real crime. That's totally distinct from what's what's happened here. That had nothing to do with the pat down of the stop. But leaving has everything to do with an illegal stop. Whether you squeal ties or whatever, that's part of the stop. But turning around and shooting a gun at someone is a totally distinct crime. It's certainly more egregious, but I the government doesn't concede that shoot a gun at the officers. Absolutely. Absolutely. And we are not analogizing driving off. But the sprinkler now. And in the other cases like that, that's what I'm trying to try and figure out. We've got this sprinkled case, but we found anything else that simply just indicates. Troveway, whether speeding tires or whatever. It wasn't in a manner to endanger the officers. They were actually he was actually leaving the officers never endangered the officer never did anything to him. He just left them. Well. And that's a. I mean, it's almost like they created the crime had they not stopped him illegally. He wouldn't have had a cause to speed away. Judge when the sprinkler's mind knowledge, then if he pulls out a gun and start shooting, that's. That's not going to be an excuse in the world for doing that. Sprinkle to my knowledge has not been applied in other publications, public, published cases in the circuit. The same analysis has applied in other circuits and. I thought it had. In published decision as to this issue. I know sprinkles often cited. We had a lot of time. I mean, I think I've tried to do that. Well, and then that's a lot of time that's the reality. Working on that case and somebody could have been an unpublished case. I don't recall. But it sprinkles applied for its the initial stop all the time. All right. Well, I just would say your honor that the act of driving away is exactly an off the unlawful is an unlawful act. And the defendant doesn't get to make a judgment. I mean, we've sat here and briefed this thing and talked about it. It wasn't it wasn't the running away they focused on because the guy turned around. He ran away from it. They said it the crime was turned around and shooting that gun at us. That's a distinct crime. The stink crime running away is part of what is going on here. If you have any legal stop, then you kind of feel a citizen might have a right to walk away from an illegal stop. And that would be it but not to turn around and shoot a gun. You don't have that. That's a distinct crime. Correct. And that's a different back pattern walking away. But sprinkle does say the defendant doesn't get to make a judgment about the legality of the stop and then take his own action at that point. And then the next morning, they issued warrants and he was arrested on those warrants for obstruction and reckless driving, which is also an arrest. And then they're going to drive. But they charge you with the destruction run away. And yes, the structure and the right to drive and driving away fast. Correct. Correct. But just a distinct relief and then they call it a charge with the structure just correct and then the distinct crime. Thank you. Thank you, Mr. Miller. We appreciate it. Mr. Carpenter. So I'd like to make a couple of quick points about the reason for suspicion before then turning back to sprinkle. The first is to clarify. I think Mr. Miller may have missed smoke when he said that at the time they met him, he was headed into the dead end at the cult of stack. That's not right. If you look at the government's brief, even at page five, they acknowledge that at the time stacks was pulling had pulled out of the third hill, parking lot and was proceeding the opposite way on West Park. So that's confirmed everywhere in the record if you look at testimony. The other point that the government relies on the fact that officer Williams first said, well, he looked like he was lost, but then he discounted that possibility because he hadn't stopped for directions. The notion that you have to stop for directions these days is a relic from the 80s. I mean, today if you're lost, you pick up your cell phone and you call someone and say, hey, where am I going? Where was I supposed to meet you? Where you punch your address where you want to go into Google Maps? It's totally unreasonable. I can't keep my head more than those Google Maps in there. Exactly. And so the fact that he didn't stop can't be the basis for eliminating the possibility that he was simply lost. It's just unreasonable for the officer to use that as the basis. I want to touch quickly also on bumpers, which Judge Floyd mentioned. There are a couple of key distinctions between this case and bumpers. The first is that in bumpers, the officers believed that they had just observed an illegal activity. They believed that they had just seen the men trespassing. And so they stopped to investigate whether that crime that they thought had just happened had in fact happened. Here, the officers are taking purely preventive action. They don't say that he committed a traffic offense. They don't say that they saw him commit any kind of offense. This is a case where they're doing a preventive stop. And so I think bumpers is distinguishable on that ground and also on the ground that the men there unquestionably took evasive action by walking briskly away from the officers, which again we have the opposite here slowing down turning towards the officers. I want to get to the sprinkled doctrine because there was a lot of talk about that. The first thing I want to say, Judge King, you ask about whether this we have to retry the case. And the answer is absolutely yes. The government doesn't even argue in its brief at any point that this error was harmless. They never argue for the court to affirm on that basis. The court should consider any argument to that effect to be abandoned. And it wouldn't have merit anyway. But you say we can't consider sprinkle. No, we can consider sprinkle surely. And I think we can consider the harmlessness of the illegal stop. I don't think you can consider harmlessness in the sense of a retrial. So what we have to do. So we have to sit it back for a retrial. I think it would have to be sent back. The government would make a decision as to whether they think they can prove their case without the evidence that must be suppressed. If you look at the Supreme Court's decisions in Murray, it outlines what happens in a situation like this. It says the exclusionary rule extends to quote testimony concerning knowledge acquired during an unlawful search. That means the officers can't testify as to their observations during the search, which means they can't testify to placing him in the area that night. It also applies to evidence that it's otherwise acquired as an indirect result of an unlawful stop. That's exactly what we have here. We have a direct causal chain. Unlawful stop leads to the issuance of an invalid warrant, which leads to the issuance that are the unlawful arrest the next morning. And the jail calls that were then made are also a part of that very direct causal chain. I thought that we have some cases that say that if there's an error, we, even though the government doesn't argue harmlessness, we consider it. I'm under the law. Why would we just have to if we can't reverse on an error unless it affects the substantial rights of the defendant? Well, I think so the rule 52 I think it is, brings harmlessness in it. If you look at the Powell decision from 2011, and I know Judge King, I think you're descended in that one, but I think Judge Floyd was on the other side. The footnote in that case, Judge Shed notes that in oral argument, the government had raised an issue an alternative basis for a firmance. And the footnote, Judge King says there, when the government doesn't raise it in its brief, we will we will consider it abandoned. I think that's what the court should do here. Any of it. Judge Shed. Judge Shed. You didn't descend on that point. Regardless, the fact that the office was able to testify about what happened during that was a critical point in their case. I mean, as Mr. Miller acknowledged, maybe that's different though from harmlessness because what rule 52, that's not the right number. It says even though there's no error will be recognized unless it affects the substantial rights of the defendant. So if there is error and it doesn't affect your client's substantial rights, conviction would be a firm. So that brings in analysis of whether the error was prejudicial. Well, I'll can see that for the moment and go to sprinkle because I think that's really the crux here. And there was a lot of sort of confusion about that. Our argument, first of all, is not that the swift decision from the North Carolina of Hallock Court somehow undermines sprinkle. We think sprinkled doctrine, I mean, it is what it is. If the person commits a new and distinct crime, that purges the taint. The problem here, the reason spring does that. The responsibility is governed by the federal rules anyway. It wouldn't be governed by North Carolina. Exactly. So there's no way that the North Carolina courts could overturn that anyway. But the key point here is that under North Carolina law, his flight did not constitute a new and distinct crime. If you look again at state versus swift, that sets out what is a North Carolina crime? And as Judge Wynn pointed out, the key in sprinkle was the person fired a shot, which Judge Michael noted in that decision was a violation of South Carolina law. There is no violation of North Carolina law here if you conclude that the stock illegal as swift itself. He could take off without obstructing judgment. He can take off without if he stopped illegally under North Carolina law. His flight, according to Swift, cannot be considered as a circumstance to establish probable calls for arrest. That applies both to the obstructing arrest and to the reckless driving arrest. There's a case directly on that point in North Carolina law that I regret. I didn't cite in the briefs, but I should have it state versus Williams. It's a citation is 231, South Eastern reporter second, 282. It's a 1977 Appellate Court case in North Carolina setting out the law of North Carolina. It's a previous decision in Borland for the proposition that I want to quote here. The defendant could not be convicted for reckless driving and speeding when the offense was committed in fleeing to avoid an unlawful arrest. That's exactly what happens here. If you conclude that this initial stop was in vowel, then his flight was not in any way a criminal offense under North Carolina law. It's here under Swift and under Williams that the two warrants for obstruction and reckless driving that were issued were invalid if the initial stop was invalid. That's why all of the evidence, including the jail calls at the end. That's what I'm saying you have right to run from a police. Under North Carolina law absolutely do. In fact, under North Carolina law is North Carolina law and sprinkle turns not on the mere act of flight but on the commission of a new and distinct crime. Judge Michael footnoted in that decision that the court did not need to address the issue of whether flight alone would be a sufficient basis to purge the taint of an unlawful stop. This court has not subsequently decided that issue and again the government does not raise that issue as an alternative basis. It doesn't say flight alone was enough. It like Judge Whitney relies solely on the sprinkled doctrine which only applies if you have a new and distinct crime. So for that reason and again I point to the court also to footnote three in Judge Whitney's opinion where he says well I think these jail calls are admissible. That's the only thing that his alternative holding extends to. He kind of reserves the question of whether identity evidence by itself would come in and sort of suggest that he would have to decide that down the road. That's another reason the court would need to send it back so that Judge Whitney could flush out in the first instance exactly what degree of identity evidence comes in. Thank you very much, Mr. Carpenter. We appreciate it. We'll come down and read counsel and then call the next gate